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Judge opts against hearing testimony in PSU case

Tuesday's hearing for Penn State administrators charged with perjury ends with a whimper

By Mike Argento

margento@ydr.com @FnMikeArgento on Twitter

Posted:
12/17/2013 01:19:11 PM EST

Former PSU president Graham Spanier was the only one of three defendants who showed for Tuesday's hearing in Dauphin County Court. ( Bradley C Bower -- Associated Press)

It was billed as a pre-trial hearing to determine -- bottom line -- whether the case against three former Penn State administrators charged with covering up former assistant football coach Jerry Sandusky's molestation of young boys, should proceed.

Attorneys representing the three -- former president Graham Spanier, former vice president Gary Schultz and former athletic director Tim Curley -- wanted the court to dismiss the charges.

To achieve that, they had asked Dauphin County Judge Todd Hoover to bar former university lawyer Cynthia Baldwin from testifying.

There were some other issues, complicated legal issues. Four days had been set aside for the hearing, scheduled to begin at 8:30 a.m. Tuesday.

Testimony was expected from former prosecutors, expert witnesses and Baldwin herself. Courtroom No. 1 was crowded with reporters and lawyers. Spanier was present, but Schultz and Curley were not.

The beginning was delayed, reportedly because of the light snowfall overnight, and when court convened at 10:18 a.m., the judge pretty much ended it before it began.

The judge granted requests from lawyers representing the prosecutors and Baldwin to quash defense subpoenas and ruled that he had enough information from transcripts of grand jury testimony and colloquies and letters written by the various lawyers involved to make a ruling.

Or maybe not. He asked the defense lawyers to submit further documentation and legal arguments. After that, the state Attorney General's office would have an opportunity to respond. And then, the judge said he may rule or may order another hearing. That could be six weeks or two months from now, one lawyer speculated.

"The judge decided he didn't need testimony to make a ruling," Spanier's attorney, Elizabeth Ainslie, said at a news conference after the truncated hearing. "At least for the time being. It's entirely possible that we could have another hearing."

At issue is whether Baldwin was representing the administrators when they appeared before the grand jury looking into the allegations against Sandusky, who later was convicted of multiple counts of molesting children and sentenced to what amounts to the rest of his life in state prison.

Baldwin later testified before the grand jury investigating the administrators, raising the question of whether she violated attorney-client privilege. Since the charges are based, partly, on her testimony, the case against Spanier, Schultz and Curley could fall apart if she were precluded from testimony during the trial.

Baldwin's lawyer, Charles DeMonaco, told reporters later that Baldwin had asked to quash the subpoena for her testimony for the hearing but added that she would testify at the trial.

"Cynthia Baldwin, at all times, at all times, fulfilled her duties and obligations to the university, its agents and its administrators," he said, declining to elaborate, saying these issues would "play out in a court of law and not in the media."

Ainslie said she believes the case "should not go to trial" and, like the lawyers representing Schultz and Curley, has asked that the charges of perjury and other offenses related to any alleged cover-up of Sandusky's predatory crimes be dismissed.

She said grand jury transcripts, unsealed by Hoover, show that the administrators were under the impression that Baldwin was representing them. Yet, another transcript quotes Baldwin saying she does not represent Spanier, just the university.

"The transcripts show that she says different things at different times as to who she represents," Ainslie said.

That issue is vital, because if she represented the defendants, defense lawyers argued, then she should not have testified before the grand jury and should not be permitted to testify during the trial.

That decision will have to wait. And if the judge rules against the defense, Ainslie said the defense attorneys have the option to appeal to a higher court. Which means that any trial, initially believed to on schedule for next spring, could be more than a year off.

The delay, Ainslie said, "distressed" Spanier.

She said he would like to have the case resolved, but "resolved in the correct way."